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A Supreme Success

December 29, 2015

Sarah Schrup with students and alumni who comprised the Kingsley team
Professor Sarah O’Rourke Schrup (center), director of the Bluhm Legal Clinic’s Appellate Advocacy Center, and a team of faculty, students, and alumni—including (from left to right) Steve Art (JD ’09), Sarah Grady (JD ’12), Daniel Fishbein (JD ’15), and Andrew Thompson (JD ’15)—helped bring Kingsley v. Hendrickson, a 7th Circuit case involving the rights of pretrial detainees, before the Supreme Court. In June, 2015, the Court issued a 5-4 decision in favor of their proposed standard for evaluating excessive force claims.

Appellate Advocacy Center Secures New Protection for Pretrial Detainees

One morning in March 2014 Northwestern Law professor Sarah O’Rourke Schrup was riding the El on her way into work, scrolling through recent opinions from the Seventh Circuit Court of Appeals when she came across a decision that had been issued just minutes earlier in Kingsley v. Hendrickson, a case where a pretrial detainee was suing his former jail guards for a civil rights violation, claiming they used excessive force. The Seventh Circuit panel had upheld the trial court’s decision, but reading a dissent from Seventh Circuit Judge David Hamilton, Schrup saw an opportunity.

Walking down Chicago Avenue, she looked up the petitioner’s attorney, called her, and by the time she walked through the doors of Rubloff, she had offered the full assistance of the Bluhm Legal Clinic’s Appellate Advocacy Center. A little over a year later, Schrup, along with fellow faculty members, alumni, and clinic students would be celebrating a Supreme Court victory, and the legal standard for evaluating excessive forms claims by pretrial detainees would be forever changed.

Kingsley v. Hendrickson

In May 2010, Michael Kingsley was arrested and held in the Monroe County Jail in Sparta, Wisconsin, awaiting trial. Guards instructed him to remove a piece of paper that had been taped over a light in his cell. He said he did not place the paper there and refused to take it down. After several requests over the course of more than a day, officers handcuffed Kingsley and carried him to another cell, where he was placed face down on a cement bunk. Officers claim Kingsley then purposely tensed his arms to make the handcuffs difficult to remove; he claims he did not resist. While still handcuffed, Kingsley was tased by one of the officers, then left alone. Some time later, officers were able to remove the handcuffs without incident.

Kingsley filed a Section 1983 civil rights suit against the guards, alleging that they deprived him of his constitutional right to be free from punishment as a pretrial detainee. He lost the case at the district level, but filed an appeal with the Seventh Circuit which centered around jury instructions and the standard for evaluating claims of excessive force by pretrial detainees against agents of the state.

Pretrial detainees are in an unusual position with respect to these claims. When a person out on the street makes a claim of excessive force, the Fourth Amendment standard of objective reasonableness applies—that is, whether a reasonable officer in similar circumstances would have employed the force in the same way. The officer's actual state of mind is irrelevant. At the other end of the spectrum are convicted prisoners. Because they have been found guilty beyond a reasonable doubt, the Eighth Amendment—not the Fourth—governs their claims of excessive force. Under that standard, a prisoner civil-rights plaintiff must prove that the jail guards harbored malicious or sadistic intent. Courts have struggled with how to assess excessive force claims by pretrial detainees: they have not yet been proven guilty beyond a reasonable doubt but often are incarcerated alongside convicted prisoners as they await trial. Although courts have generally agreed that the due process clause of the Fourteenth Amendment governs such claims, they have been split on whether an objective standard like the Fourth Amendment or a subjective one like the Eighth Amendment is more appropriate. The jury instructions in the original trial required a showing of subjective intent, but Kingsley's lawyers—which later included Schrup and her Supreme Court Clinic co-instructor Jeffrey Green, a partner at Sidley Austin—argued for an objective standard.

Seventh Circuit Judge Hamilton, in his dissent, wrote: "If a pretrial detainee can prove that a correctional officer used objectively unreasonable force against him, it should be self-evident that the detainee was 'punished' without due process of law."

This observation inspired Schrup to pick up the phone.

"Forcing a pretrial detainee to prove the jailer's subjective intent is too onerous, particularly when that person has not yet been adjudged guilty of the charged crime and is presumed innocent. Many of the people who are sitting in jail awaiting trial are there because they're poor; they can't make bail, and a person's constitutional rights should not turn on such vagaries," Schrup said.

The Appellate Advocacy Center

Schrup, Harry B. Reese Teaching Professor of Law and director of the Appellate Advocacy Center, knew the Center was uniquely qualified to handle the case.

Founded in 2006, the Center offers a Federal Appellate Clinic, where students represent criminal defendants before the Seventh Circuit Court of Appeals and, in partnership with Sidley Austin's Supreme Court practice, a Supreme Court Clinic where students work with the firm's attorneys to assist with petitions for certiorari, merits briefs, amicus assistance, and oral argument preparation.

The Center's results are impressive—the Federal Appellate Clinic has achieved favorable outcomes for its clients in 30 percent of cases, a rate much higher than the national average, and the Supreme Court Clinic has assisted with over 140 cases in some capacity. It's easy to see why the experience appeals to students.

"What compelled me to enroll in the clinic last fall was the opportunity to work on real cases at the highest level of our judicial system, while working with and learning from truly some of the best advocates in the country at Sidley and Northwestern," said Daniel Fishbein (JD '15), one of the students who worked on Kingsley. Fishbein conducted extensive legal research, helped to draft the merit briefs, and played opposing counsel in a moot court.

Connection to the Center often doesn't end after the case or the semester does. While students are grateful for the opportunities the Center provides, Schrup is grateful for the continued commitment from alumni.

"What I'm struck by is how alums of the clinic really do stay involved. They come back and they help with our cases," she said. "I think it's remarkable for somebody who has been out for ten years to remember what it was like to prepare for their first oral argument and to come back and help a current student now in that same position."

The Kingsley case made use of all of the Center's greatest strengths: the wealth of knowledge and expertise with both the Seventh Circuit and the Supreme Court, the extensive collaboration between faculty, students, and alumni; and the rigorous moot court process to prepare for oral arguments.

Getting to Work

Wendy Ward, Kingsley's Wisconsin lawyer who brought his appeal to the Seventh Circuit, agreed to work with the Center on the case, and Schrup and her students hit the ground running. They drafted the petition for rehearing in the Seventh Circuit, which was denied, and then drafted the petition for writ of certiorari.

After certiorari was granted in January 2015, Schrup recruited other members of the Northwestern Law community.

"We immediately rallied the troops around here," she said. "I'm certainly not an expert in civil rights litigation. I've done a few cases but there are many more people at the Law School who are much more well-versed."

Schrup reached out to David Shapiro, a clinical assistant professor and attorney with the Bluhm Legal Clinic's Roderick and Solange MacArthur Justice Center, and Alan Mills, a Northwestern Law adjunct professor who serves as executive director of the Uptown People's Law Center, to help brainstorm and strategize.

Schrup and her students drafted the merits briefs, which she calls the most important part of the case.

"The students were essential to this case," she said.

Andrew Thompson (JD '15), who plans on working in corporate law, took the long hours of research in stride, recognizing it was an opportunity he wasn't likely to repeat.

"This was a phenomenal experience and gave me exposure to issues that I wouldn't be able to see otherwise," he said.

Called to Justice

In the winter, Schrup and her students received word that their opponents had requested a meeting with the Solicitor General's office and that the SG wanted to meet with them as well. Even though the federal government was not a party in this suit, the decision would have obvious consequences for government agencies.

Schrup and the rest of the Kingsley team flew to Washington DC. Waiting in the quiet halls of the Department of Justice Building, they caught a glimpse of their competition.

"To this point, the group of guards had been represented by small Madison firm," explained Schrup.

"The deputy SG who is escorting us in points to the group exiting the conference room and says 'Oh, there's your opposing counsel.' So we peer down the hallway and right there in the middle of this group of lawyers is [former Solicitor General] Paul Clement."

Now knowing they would be facing one of the most experienced and formidable Supreme Court advocates, they entered the conference room to meet with lawyers from across the Department of Justice, an experience Schrup called "one of the most fascinating things I've done in my legal career."

Ultimately, the SG filed a brief that didn't fully commit to either side but endorsed the standard proposed by the Kingsley team.

A Little Help from Their Friends

Schrup reached out to two Northwestern Law alumni, Steve Art (JD '09) and Sarah Grady (JD '12) at the civil rights firm Loevy and Loevy to help execute their amicus curiae strategy by submitting a brief on behalf of former correctional administrators and experts.

"Our brief was important because the opposition argued that if you were to decide the use of force is ruled by an objective standard, you would have a 'parade of horribles,'" explained Grady, who worked in the MacArthur Justice Center as a law student.

"They said, 'Guards would start to be very scared that if they were to use force they might be sued, so they would use less force. And let's all face it, jails are very dangerous places and we need to give guards great latitude.' The people on whose behalf we wrote said to us that jail guards are already told to use force based on an objective standard. So in this brief I think we were able to argue very persuasively if the Court did indeed choose a community standard, looking objectively at what a reasonable guard would do, there would be no 'parade of horribles.' In fact, it would be a better guide to guards and correctional departments."

"There is a tangible benefit to having great amici on your side," said Schrup. "We asked ourselves, 'Where can we flesh out the narrative of our case?' and we thought if former correctional officers who ran prisons are going to say objective standards are better, who would argue with that?"

The Kingsley team also secured briefs from the American Civil Liberties Union, underscoring that many pretrial detainees are nonviolent offenders unable to afford bail and the pervasiveness of guard-on-detainee violence, and the National Association of Criminal Defense Lawyers, which highlighted the long legal history of objective reasonableness as a standard in excessive force cases.

Practice Makes Perfect

The Appellate Advocacy Center has a robust moot program for Supreme Court cases, holding roughly a half dozen each year. Northwestern Law faculty, Chicago-based lawyers, and alumni from all over the country are frequent participants—acting as the justices, asking questions, and providing critique. Clinic students argue the opposing side.

Class of 1940 Research Professor of Law James Speta, a frequent participant in the Center's moots, ran one of the moots for Kingsley where Ward prepared for oral argument. Amicus brief authors Art and Grady were among the attendees.

"It's an incredibly collaborative, open environment to ask questions and see how different folks approach the task and litigate at the appellate level," said Art, who participated in clinics with the Center on Wrongful Convictions and the Center for International Human Rights as a law student.

"Aside from writing the brief, participating in the moot was my favorite part of the experience," said Grady. "I was very fortunate that Sarah invited me, because I really enjoyed being able to participate in the process of shaping the argument. It also allowed me to see how involved the students were, which I think is so unique to Northwestern's clinics as a whole. They all do a great job of involving students in those types of very important issues and really giving them a ground-level ability to participate."

After observing oral arguments in April, it was clear to Thompson the preparations paid off.

"No one had really asked this question before and that's why it's at the Supreme Court," he said. "It was amazing to see how all of the questions we were asking each other came up in the argument. Every question they asked, we had asked. Every issue they wondered about, we had wondered about. It was fantastic to see that."

Decision Day

On June 22, 2015, the Court issued a 5-4 decision in favor of Kingsley and objective reasonableness as the test for excessive force claims by pretrial detainees.

Justice Breyer—joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan—wrote: "The question before us is whether, to prove an excessive force claim, a pretrial detainee must show that the officers were subjectively aware that their use of force was unreasonable, or only that the officers' use of that force was objectively unreasonable. We conclude that the latter standard is the correct one."

Breyer said they arrived at that decision for three reasons: there was ample legal precedent for the standard with respect to pretrial detainees and those who have been accused but not yet convicted of crimes; experience suggests the standard is practical, specifically citing the brief by Art and Grady; and the standard offers sufficient protection for officers.

Art and Grady were surprised at both the outcome and the tone of the decision.

"It is exceedingly rare these days to see a victory for a civil rights plaintiff from the Supreme Court," said Art.

"It was a really surprising and incredible decision that acknowledged head-on the difficulties between assuring that pretrial detainees have their rights protected while also acknowledging that it can be difficult to balance those rights against what can be a challenging atmosphere where people have to protect themselves and other prisoners," said Grady.

"I think it went a long way to recognize that these issues should not be dealt with by giving total deference to correctional officers, and that the constitutional rights of those who are incarcerated—especially those who have not been convicted of any crime—really must be protected. I was also thrilled to see the majority opinion really questioning whether or not subjective intent should come in to play for claims of excessive force, even once a prisoner has been convicted. I think it really left open the door for a future Eighth Amendment challenge."

Schrup couldn't help but notice how their case coincided with a renewed national attention to the civil rights of those dealing with law enforcement—the Baltimore riots in the wake of Freddie Gray's death were the same week as Kingsley's oral arguments. Green doesn't think that played a role in the outcome of Kingsley at all, but thinks the new consciousness might help push the justice system toward embracing objective standards more broadly, as Grady described.

"To the extent that we continue to see more in the media about how people are treated, both in the course of arrest and once they're incarcerated it may be that courts will be more amenable to suggestions in cases that the standard for Section 1983 actions for convicted prisoners who are hurt ought to be objective ones rather than subjective ones," Green said.

He even wonders, recognizing the benefit of hindsight, what might have happened if their team had been a bit bolder in their briefs.

"What Chief Justice Roberts told the Clinic when he taught our class back in 2007, is proving true. He said, 'you should play all-in poker more often.'"

The decision sent the case back down to the Seventh Circuit to revisit in light of the new standard, and the Seventh Circuit recently remanded it back to the district court for a new trial. Regardless of the eventual outcome of that suit, Michael Kingsley's legal battle will have a lasting effect on the criminal justice system.

"In the first week, Andrew and I quickly got the impression that what we were doing really mattered," said Fishbein. "We saw the fruits of our research become the basis of our team's strategic decisions, and so as the weeks went on we really wanted to make sure we were getting it right. The most incredible part of working on Kingsley has been its impact. The Court's decision will affect millions of pretrial detainees for the better, and to be part of that effort has been its greatest reward."

"In law school, you read these cases that make really foundational decisions about the law and I think in 20 years, Kingsley v. Hendrickson will be that case for pretrial detainees," said Grady. 


This article was written by Amy Weiss and first published in the Fall 2015 issue of the Northwestern Law Reporter.